For a while I've thought it would be a good idea to make drug paraphernalia that had something like 'Google jury nullification' handwritten on it, and maybe also a brief explanation. The idea is that if it were ever seized then it would have to be read as evidence in the court. You could also add several other features to create reasonable doubt, e.g. an inked thumbprint of another person, someone else's name on it, etc. I think it would make a good Kickstarter project. It would be cool to make 10,000 baggies and a few vaporizers and then to wait for someone to actually get arrested to see how it would work in practice, as sort of a participative art project.
" The idea is that if it were ever seized then it would have to be read as evidence in the court."
What?
I'm trying to follow this logic, help me out here :)
Among other things (like the fact that there is zero reason anyone would read it to a jury), judges have broad discretion to let evidence in/out.
http://www.law.cornell.edu/rules/fre/rule_403
They would just not let it be read to a jury as evidence. There are a small number of things not subject to 403's balancing rules, i don't think this would fall into any of them.
(Most states have evidence codes based on the federal rules)
Maybe for the jury nullification part. But if the cops claimed they had seized a baggy of drugs from your car, and that baggy said in handwritten letters on it "property of X", and your name was not X, it's hard to see a judge preventing that from being admitted.
And even for the jury nullification part I think you'd have a decent shot of getting it admitted. Do you really think a judge could prevent you from arguing that it's not your handwriting without creating grounds for an appeal? If there is nothing to indicate that you actually knew the drugs were in your car then this could be a significant point of evidence. Anyway I'm not saying it would work in all cases, I just think there is enough of a chance of it working in some cases (or at least creating drama) that it would make for a decent art project.
First, I mainly care about the jury nullification part.
The rest is essentially you suggesting that you can manufacture non-reliable evidence and introduce it.
The problem with this is that the evidence must have probative value, and generally be reliable, to be admitted.
" Do you really think a judge could prevent you from arguing that it's not your handwriting without creating grounds for an appeal?"
If your intent is to corrupt, confuse, or otherwise mislead a jury, yes, i think a judge will prevent you.
Even if he doesn't prevent you, he will strongly admonish the jury about it, and if another juror believes a given juror is not following instructions, they are likely to report them, and it will get dealt with.
This happens all the time.
As for grounds for appeal, generally, evidence rulings are reviewed for abuse of discretion. Basically, the appellate court must find that the decision was wholly unsupported by the evidence, illegal, or clearly incorrect. Even then, it is likely to be found to be harmless error anyway, unless this is the only evidence.
Of course, you are welcome to believe what you want, what do I know.
While I don't dispute your analyzes of the legal system, it do paint a rather grim picture. Evidence in this case can then only ever be used in one direction.
Had the handwriting and name been that of the suspect, it would without doubt be used as evidence to crucify the suspect. However, if the handwriting and name is about someone else, then the evidence is regarded as confusing and thus discarded.
It looks to me as a realistic, maybe a bit cynical view of the legal system. Is this really how empirical evidence should be used?
> The rest is essentially you suggesting that you can manufacture non-reliable evidence and introduce it.
I have no doubt that a judge can and would block the evidence if they thought the intent was to 'corrupt, confuse, or otherwise mislead.' What I do doubt is that the judge would automatically think that this was doing that.
E.g. how is this any different from "If the glove don't fit, you must acquit?"
If I ever had a bunch of spare advertising inventory, pro jury nullification would be the PSA I'd run. I wish someone would do a really catchy viral video about it. It wouldn't even need to run nationally; assuming jurors in many cases are drawn from the local county, you could blanket high-drug-prosecution counties with the message, information about how drug convictions don't actually solve the problems of the ghetto or drug abuse, etc., and probably be fairly effective.
As long as you do it before they are selected. Mark Schmidter got imprisoned for distributing jury nullification information to empaneled jurors; I'm not really into finding out what the worst possible judge things is contempt anywhere in the US.
I think you'd be a lot safer doing it from outside the jurisdiction of the court in question. I really don't know -- it seems like jury tampering/contempt of court have a lot of power and rely on the judge being not an utter tool, which often breaks down. Going to jail and eventually winning some legal challenge is something I'd personally consider a failure, but others are willing to do.
